QUEBEC – Quebec Premier Philippe Couillard took advantage of a public appearance with Prime Minister Stephen Harper to repeat his wish for the province to sign the Constitution.

Couillard said he wants Quebec to sign on by 2017, the 150th anniversary of Confederation.

The premier made the comments Saturday during a Quebec City speech, at an event commemorating the 200th anniversary of the birth of Sir George-Etienne Cartier, a French-Canadian statesman viewed as one of the Fathers of Confederation.

Cartier’s vision for a united Canada that incorporates “a strong Quebec identity” could serve as an inspiration in future talks, Couillard said.

The Quebec premier made a similar commitment to the Constitution at the beginning of this spring’s provincial election campaign, but he then shied away from the idea after coming under heavy criticism from the Parti Quebecois.

Later in the campaign he said job creation would be the priority for a Quebec Liberal government and made it clear a constitutional initiative would have to come from English Canada.

Previous Quebec premiers have ducked the Constitution issue, especially since the failures of the Meech Lake accord in the 1980s and the Charlottetown agreement a few years later rekindled sovereigntist fervour to bring the Yes side within a whisker of winning the 1995 referendum.

Harper did not take questions from reporters, but a spokesman for the prime minister said the government has “no intention of re-opening the Constitution.”

“Our government will continue to practice a federalism that respects Quebec and provincial jurisdiction,” Jason MacDonald said in an email.

In his own speech, Harper hailed Cartier as “one of the great architects of modern-day Canada,” who promoted inclusiveness and respect across the country.

A powerful Quebec politician and lawyer, Cartier is seen as a key player in the movement towards the 1864 Quebec Conference and Confederation itself.

Harper noted that Cartier fought for provincial rights within the federation, though he quickly added there are limits in a united Canada.

“Does it mean that all the provinces and territories will get everything they want all the time? Of course not,” he said.

Your typical quick-to-judge government critic ought to be skeptical of any urge to call any bad thing a government does unprecedented. Unprecedented is a powerful word. Unprecedented means never before. Often, the thing, whatever it is, has happened before. Nevertheless, as the Tory government ages, the pile of apparently unprecedented things grows ever larger.

Here’s a new thing for the pile, at the risk of misfiring: Has a government ever before tabled so many bills in a single parliamentary season rejected by courts, political opposition and/or learned experts as unconstitutional? The list now includes C-13, the cyberbullying bill that changes surveillance rules; S-4, the privacy bill that amends disclosure rules surrounding personal information; C-24, which overhauls citizenship rules; C-36, the government’s attempt to rewrite sex-work laws; C-23, the Fair Elections Act, briefly, before the Tories amended the bill; and the government’s failed appointment of Marc Nadon to the Supreme Court and Robert Mainville to Quebec’s Court of Appeal.

Phew. Getting away from Ottawa for the summer at least stops the Tories from tabling new bills. They’ll have to spend the summer spinning the Constitution.

Maclean’s is your home for the daily political theatre that is Question Period. If you’ve never watched, check out our primer. Today, QP runs from 2:15 p.m. until just past 3. We livestream and liveblog all the action.

Yesterday, the federal government released its factum (set of arguments to the Court) on the Senate reform reference. Paul Wells already has a good initial take on the feds’ approach and I will be writing much more on this in the days leading up to the Supreme Court’s hearing in November. But I wanted to specifically comment on the Justice Department’s arguments about why unanimity is not required to abolish the Senate.

Whether it requires seven provinces or 10 to get rid of an institution many critics appear to regard as arcane or useless might seem like a relatively trivial legal issue. Yet the arguments presented throughout the factum, and on abolition especially, go to the heart of something much more important: if the Constitution is fundamentally about establishing the rules and structure for how our democracy and governing institutions function, the constitutional amending formula is about who gets to write those rules.

What’s particularly galling about the government’s factum is its attempt to reduce the text of the amending formula (Part V of the Constitution Act, 1982) to secondary or “incidental” importance, when in fact the amending formula is at the heart of the reference case.

Right at the start of the section of the factum on abolition, the government’s lawyers begin by flagrantly abusing the plain meaning of the constitutional text.

153. The abolition of the Senate by any of the methods suggested in Question 5 would not constitute, in pith and substance, an attempt to amend Part V of the Constitution Act, 1982, because abolition of the Senate is not a matter in relation to the amendment of the amending procedures. The changes resulting to the operation of those procedures would be incidental to the Senate’s abolition.

This statement is true only if you literally don’t read the amending procedures. I’m a stickler, so here’s the text of the general amending procedure, section 38(1), and the unanimity procedure, section 41. Note that I’ve added the relevant parts in bold to help the DoJ’s lawyers out:

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

(a) resolutions of the Senate and House of Commons; and

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

…

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;

(c) subject to section 43, the use of the English or the French language;

(d) the composition of the Supreme Court of Canada; and

(e) an amendment to this Part.

Note 41(e): “Part” refers to all of Part V of the Act. Any changes to the amending formula require unanimity. The factum later acknowledges this, and things get a little more complicated when, as the factum points out, we see that the drafters provide for an effective veto in the event the Senate fails to pass a resolution on an amendment. From the factum:

162. The primary argument advanced by those who believe the unanimous consent procedure is necessary to abolish the Senate is that the abolition of the Senate itself constitutes an amendment to Part V of the Constitution Act, 1982 and therefore requires unanimous approval pursuant to s. 41.

163. The Senate is expressly mentioned in ss. 38, 41 and 43 of Part V. However, the Senate is not an essential actor in relation to any of the multilateral amending procedures in the Constitution. With the exception of s. 44 of the Constitution Act, 1982, the Senate has only a suspensive veto in respect of the amendment process. The absence of the Senate would not prevent the enactment of amendments under s. 38 (the 7/50 formula), s.41 (unanimity) or bilateral/multilateral amendments under s. 43.

164. That the concurrence of the Senate is not required for any of the major categories of amendments of the Constitution is supported by s. 47 of the Constitution Act, 1982. That section makes it clear that an amendment to the Constitution under ss. 38,41,42 or 43 may be made without a resolution of the Senate if within 180 days after the House of Commons adopts an authorizing resolution, the House again adopts the resolution.

This is a really interesting interpretation, in that it suggests all the references to the Senate in the amending formula are meaningless because section 47 allows the Senate to be overridden after 180 days. Except one could flip the logic here and suggest that the Senate is in fact very important to the amending formula—so important that the drafters took pains to include a separate clause requiring a full 180 days to pass before the Constitution can be amended without the Senate’s approval. “Incidental” indeed.

Other parts of the factum actually do a pretty good job of undercutting the “incidental” relationship the word “Senate” has with the amending formula’s text:

165. Even amendments under s. 44 of the Constitution Act 1982, which gives “Parliament” the power to amend the Constitution, do not necessarily require Senate approval. The definition of “Parliament” in s. 17 of the Constitution Act, 1867 could be amended (pursuant to s. 38) to remove the reference to the Senate, such that the Senate would cease to be a part of Parliament. That would not be an amendment in relation to the Part V amending procedures but rather, an amendment in relation to the composition of Parliament, and thus within the general amending procedure found in s. 38. The consequence of that amendment would be that the newly-defined Parliament (now consisting of the Queen and the House of Commons) would inherit any and all powers of legislative amendment under s. 44 of the Constitution Act, 1982. Thus, Part V is exhaustive both with regard to the reform of the Senate, but also with respect to its abolition.

By highlighting that section 44 refers only to “Parliament” and the definition of “Parliament” can be changed, the DoJ’s lawyers imply (accidentally, I assume) there is a substantive significance in the decision by the drafters to refer expressly and separately to “the Senate” in the other sections.

Other arguments in the factum are such a stretch of logic only Mr. Fantastic could follow them (Fantastic 4 anyone? He’s the guy who can stretch really far… OK, I’m sorry). Here’s the government’s entire argument for how these seemingly important references to the Senate automatically become “spent”:

160. The abolition of the Senate by means of the general amending procedure found in s. 38 of the Constitution Act, 1982 would not constitute, in pith and substance, an amendment to the amending procedure. Any provisions that mention the Senate that might remain in the text of the Constitution would be spent. Precedent for this is found in relation to the abolition of the upper house of the Quebec Legislature. Section 71 et seq. of the Constitution Act, 1867 still refers to the “Legislative Council of Quebec” even though that body was abolished by the Act respecting the Legislative Council of Quebec, S.Q. 1968, c. 9.

I have already outlined why, in pith and substance, “abolishing” the Senate constitutes an amendment to the amending formula. The feds’ example of the upper house of the Quebec legislature would be a great one if it was mentioned in the amending formula. It is not.

More hand-waving abounds throughout the factum:

157. … The general amending procedure could be used to realign the distribution of seats in the Senate and remove the legislative “powers” of the Senate. The removal of these key features of the Senate through the general amending procedure strongly suggests that the Senate could be abolished using that same procedure.

Again, this is only convincing if you ignore the text of the amending formula. It is true that the general formula can gut the Senate of its powers. At a minimum, however, this would impose a 180-day delay on all future amendments by virtue of section 47. The federal government’s argument that these provisions become “spent” belies the plain language of the Constitution and subjugates the amending formula—how we decide who gets to change the country’s supreme law—to a subordinate, incidental role.

I’m agnostic on Senate reform or abolition. What I find offensive about the government’s factum is that it constitutes a blatant attempt to change the constitutional amending formula by stealth. The Supreme Court would be irresponsible to allow it.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, was published in 2013 by UBC Press.

]]>http://www.macleans.ca/news/canada/the-harper-governments-galling-argument-in-the-senate-reference/feed/37How the royal baby gave us a constitutional crisishttp://www.macleans.ca/politics/ottawa/how-the-royal-baby-gave-us-a-constitutional-crisis/
http://www.macleans.ca/politics/ottawa/how-the-royal-baby-gave-us-a-constitutional-crisis/#commentsTue, 23 Jul 2013 16:12:04 +0000Aaron Wherryhttp://www2.macleans.ca/?p=407432Why the royal succession law matters

The government of Quebec is apparently set to join a legal challenge of the royal succession law that was quickly passed before the royal baby was birthed so as to end the practices of placing male heirs before elder females in the line of succession and rendering heirs who marry Roman Catholics ineligible.

Philippe Lagasse explained the problems with the bill for us in February.

Canada’s most monarchist government in decades has just dealt a serious blow to the Canadian Crown. In an effort to quickly enact changes regarding royal succession, the government has introduced a bill that undermines the concept of a truly independent Canadian Crown, the foundation of Canadian sovereignty. Equally troubling, the government claims that altering succession to the throne does not require a constitutional amendment. In making this argument, the government has overlooked the very nature of the Crown in law and the Canadian constitution. However commonsensical the proposed changes to the law governing succession may be, such a cavalier approach to the Crown, to the foundation of sovereign authority of and in Canada, merits scrutiny.

… it is worth discussing what might happen if we accept the government’s argument that succession is only a matter of British law and that changes to the rules of succession do not require a constitutional amendment. The most obvious consequence of the government’s position is that Canadian republicans will have been proved right: the Crown is an inherently British entity and Canada cannot claim to be an independent state until our ties to the House of Windsor are cut or we become a republic. The government’s view would also mean that Canada would effectively cease to be a constitutional monarchy if the United Kingdom decided to become a republic. The concept that underlies Canada’s entire system of government, the Crown, could be dismantled by another country.

In the summer issue of the Canadian Parliamentary Review, Paul Benoit and Garry Toffoli of the Canadian Royal Heritage Trust argued that the bill was insufficient and a constitutional amendment was required, while Rob Nicholson, justice minister at the time, defended the government’s legislation.

]]>http://www.macleans.ca/politics/ottawa/how-the-royal-baby-gave-us-a-constitutional-crisis/feed/37What do we really want to do with the Senate?http://www.macleans.ca/news/canada/what-do-we-really-want-to-do-with-the-senate/
http://www.macleans.ca/news/canada/what-do-we-really-want-to-do-with-the-senate/#commentsMon, 22 Jul 2013 15:34:11 +0000macleans.cahttp://www2.macleans.ca/?p=407044Why it's not good enough to demand reform or abolition

It is incredibly unfortunate, though not at all surprising, that a debate about the Canadian Senate is occurring in the context of scandal implicating a handful of senators.

The Mike Duffy affair, which has implicated the Prime Minister’s Office, the personal and legal issues facing Patrick Brazeau and a general concern about expenses implicating them and other senators has instigated overwhelming support for change, with a massive majority of Canadians supporting reform or abolition. One recent poll suggests a meagre 6 percent of Canadians support leaving the institution as it is. Coupled with a set of reference questions the federal government has put to the Supreme Court of Canada about the Senate, including what it would take to establish term limits and advisory elections and to abolish the Senate altogether, it is clear the debate will be on the public agenda for months (the Court is set to hear arguments about the reference in November).

Less clear is whether people have thought through the implications of what reform or abolition would mean. The premier of Prince Edward Island, Robert Ghiz, is under the completely erroneous assumption that if we abolish the Senate then PEI would lose most of its seats in the House of Commons. The language of the Constitution is clear on this: by virtue of the wording of section 41(b) of the 1982 Constitution Act, which I strongly encourage Premier Ghiz to read, PEI cannot lose any seats barring an amendment passed with the consent of all provinces and the federal government, regardless of the status or existence of the Senate. Who knows how many of his constituents are now basing their opinion about Senate reform on an utterly false premise.

Also unclear is whether people have given due consideration to whether reform or abolition is feasible. Any major changes to the Senate’s powers require consent of seven provinces representing at least half of the population. Anyone alive in Canada during the 1960s, 70s, 80s or 90s knows how difficult gaining that sort of consensus can be; the last effort at major constitutional reform arguably led to the near-breakup of the country in 1995.

To completely abolish the Senate, in my opinion, would require the approval of all ten provinces. This is because the Senate itself is referenced in the constitutional amending formula and to make any changes to the formula requires unanimity. Some scholars have pointed out that section 47 allows for constitutional amendments without the Senate’s approval (it states that amendments can proceed 180 days after the Senate fails to give its approval so long as the House of Commons provides a second approval) and thus we should be able to effectively castrate the Senate under the 7/50 rule. But doing so would mean an automatic 180-day delay on all future amendments to the Constitution (those familiar with the failure of the Meech Lake Accord would acknowledge this is less than ideal).

Mind you, none of these facts should translate into an argument that formal constitutional change should be avoided at all costs. We should be able to act collectively like grown-ups on occasion, especially when there is considerable consensus.

The problem with the Senate debate is that the consensus is illusory. Discounting those who are fine with the status quo or do not care, roughly half of people polled favour reform, the other half abolition.

Those who favour reform need to start from first principles. It is one thing to make the case that the current situation is unpalatable, it is another to answer the question “what should the Senate be for?” Let’s accept at face value reformers’ arguments that the system of patronage appointments that governs Senate selection is not only undemocratic, but that it has also irreparably damaged the institution’s reputation. That does not tell us what to replace it with. The pertinent question may not be whether any reform is necessary but whether particular reforms are desirable. This could range from something as modest as an approach that seeks to better hold the prime minister accountable for bad appointments to one that would see the Senate’s powers dramatically reduced, or Senate elections, or both.

Yet all of these ideas are debatable. If the key concern is democratic legitimacy and the implicit answer is to hold elections, it might be worth thinking about whether this would simply be creating another House of Commons, a check on the lower house that does nothing but add another layer of partisan buffoonery. Perhaps that is unfair. Another layer of democratic control may be desirable. It works for the United St… well, er, Australia. It seems to work for Australia.

Another issue is whether there is anything about the current Senate that we would like to retain. Despite its bad press, the Senate routinely provides thoughtful insight into a host of policy issues. Its committees are often exemplars of the “sober second thought” defenders of the status quo cling to. It has recently imposed its will on the legislative side as well, although from the perspective of democratic reformers this is only more proof change is needed.

If we cannot agree on how to remake the Senate, perhaps abolition is the best way to go. If reformers need to outline a plan on what the Senate should be, abolitionists need to outline how they will get provinces like PEI on board. Oh, and how they will get Quebec—or other provinces, mind you—to agree to this specific constitutional change but no others. I must admit to disliking this argument—the assumption that we “open” the Constitution like it is Pandora’s Box and we cannot deal with a single, important issue without the provinces clamouring for Distinct Society clauses or a National Strategy on Pipelines/Pandas/the Hazards of WiFi—but I am afraid I cannot point to any evidence that this is not exactly what would happen.

But before we engage in a fantasy epic worthy of George R. R. Martin, or even before we hear back from the Supreme Court about how to change the Senate, is it too much to ask for a debate about what we want to change first?

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role is now out on paperback from UBC Press.

]]>http://www.macleans.ca/news/canada/what-do-we-really-want-to-do-with-the-senate/feed/12Supreme Court to examine Quebec allegations it intervened in Constitution repatriationhttp://www.macleans.ca/news/supreme-court-to-examine-quebec-allegations-it-intervened-in-constitution-repatriation/
http://www.macleans.ca/news/supreme-court-to-examine-quebec-allegations-it-intervened-in-constitution-repatriation/#commentsWed, 10 Apr 2013 05:51:25 +0000The Canadian Presshttp://www2.macleans.ca/?p=369898QUEBEC – The Supreme Court of Canada says it will investigate allegations that some of its members intervened in the repatriation of the Constitution.
The high court’s decision came after…

QUEBEC – The Supreme Court of Canada says it will investigate allegations that some of its members intervened in the repatriation of the Constitution.

The high court’s decision came after urging by Quebec’s Parti Quebecois government for Ottawa to “open its books” on the events that led to the repatriation of the Constitution by Pierre Elliott Trudeau’s federal Liberals in 1982.

The call by Quebec Intergovernmental Affairs Minister Alexandre Cloutier on Tuesday came after the publication of a book that alleges Supreme Court of Canada magistrates interfered in the political process and engaged in backroom discussions.

The judiciary “cannot interfere with the political powers — that’s the basics of democracy,” Cloutier told a news conference Tuesday.

A spokesman for the Supreme Court indicated Tuesday the court is concerned by the questions about its credibility and feels it necessary to investigate.

“The court attaches great importance to its institutional independence and to the confidentiality of its deliberations,” said Owen Rees, executive legal officer for the court, in a statement obtained by several media. “It is reviewing the content of these allegations.”

The book, which was released Monday, was written by historian and journalist Frederic Bastien.

Bastien writes that Bora Laskin, then chief justice of the Supreme Court, provided information to the Canadian and British governments on the discussions between magistrates about the legality of repatriation.

Another high court judge, Willard Estey, also secretly advised the British government in 1980 that the Supreme Court would address the issue, the author wrote.

Bastien suggests that both jurists violated the principle of separation of executive and judicial powers. Bastien’s information was gathered during eight years of digging through documents, including British Foreign Office archives.

All provinces except Quebec, which was then led by sovereigntist premier Rene Levesque, endorsed the Constitution in 1982. Two attempts to bring Quebec on board since have both failed.

Cloutier said the new allegations are troublesome in that Quebecers not only had a Constitution imposed on them, but also because judges named by the federal government allegedly intervened in the case.

“It also shows just how far prime minister Pierre Elliott Trudeau was ready to go and what means he was willing to use to force the Constitution down the throat of Quebecers, gestures that are extremely serious,” Cloutier said.

An irked Cloutier said the subject matter discussed was very sensitive and Quebecers deserve to know the truth about what happened.

“It’s the first time that I’m personally aware a Supreme Court justice would have intervened during the repatriation period,” Cloutier said.

“That’s a huge problem for the respect for democracy and institutions.”

Cloutier wants the federal government to make public all the documents relating to the repatriation and “discuss what really happened.”

But the request was dismissed by Ottawa.

“I understand the PQ wants to reopen the constitutional battles with Pierre Trudeau’s former Liberal government,” said Carl Vallee, a spokesman for Prime Minister Stephen Harper.

“We do not intend to play in that movie, we will remain focused on what really matters to Quebecers, Canadians: jobs and growth.”

Premier Pauline Marois vowed the Quebec government wouldn’t stand idly by in the face of Bastien’s revelations of what he describes as a “constitutional coup d’etat.”

The matter will be discussed by PQ ministers during their weekly cabinet meeting on Wednesday.

The other parties in Quebec City say they’re interested in answers but add little would be changed 30 years after the fact.

The Liberals’ Jean-Marc Fournier was prudent in his comments. The party’s new leader, Philippe Couillard, has said he’s in favour of reopening talks on the Constitution.

Fournier emerged from a party caucus meeting and said repatriating the Constitution without Quebec’s approval was a missed opportunity at Canadian unity.

Fournier said if there was judicial intervention, it would be troubling and he would expect the federal government to be transparent in the file. But he questioned what opening the books would change now.

The leader of the Coalition for Quebec’s Future echoed that.

“They (the allegations) raise questions, but what does it change in the lives of Quebecers?,” wondered Francois Legault. “I also want the information, but I can’t see that it will change much.”

]]>http://www.macleans.ca/news/supreme-court-to-examine-quebec-allegations-it-intervened-in-constitution-repatriation/feed/1Supreme Court to examine Quebec allegations it intervened in Constitution repatriationhttp://www.macleans.ca/news/repatriation-of-constitution-in-1982-quebec-demands-that-feds-open-their-books/
http://www.macleans.ca/news/repatriation-of-constitution-in-1982-quebec-demands-that-feds-open-their-books/#commentsTue, 09 Apr 2013 23:25:48 +0000The Canadian Presshttp://www2.macleans.ca/?p=369728QUEBEC – The Supreme Court of Canada says it will investigate allegations that some of its members intervened in the repatriation of the Constitution.
The high court’s decision came after…

QUEBEC – The Supreme Court of Canada says it will investigate allegations that some of its members intervened in the repatriation of the Constitution.

The high court’s decision came after urging by Quebec’s Parti Quebecois government for Ottawa to “open its books” on the events that led to the repatriation of the Constitution by Pierre Elliott Trudeau’s federal Liberals in 1982.

The call by Quebec Intergovernmental Affairs Minister Alexandre Cloutier on Tuesday came after the publication of a book that alleges Supreme Court of Canada magistrates interfered in the political process and engaged in backroom discussions.

The judiciary “cannot interfere with the political powers — that’s the basics of democracy,” Cloutier told a news conference Tuesday.

A spokesman for the Supreme Court indicated Tuesday the court is concerned by the questions about its credibility and feels it necessary to investigate.

“The court attaches great importance to its institutional independence and to the confidentiality of its deliberations,” said Owen Rees, executive legal officer for the court, in a statement obtained by several media. “It is reviewing the content of these allegations.”

The book, which was released Monday, was written by historian and journalist Frederic Bastien.

Bastien writes that Bora Laskin, then chief justice of the Supreme Court, provided information to the Canadian and British governments on the discussions between magistrates about the legality of repatriation.

Another high court judge, Willard Estey, also secretly advised the British government in 1980 that the Supreme Court would address the issue, the author wrote.

Bastien suggests that both jurists violated the principle of separation of executive and judicial powers. Bastien’s information was gathered during eight years of digging through documents, including British Foreign Office archives.

All provinces except Quebec, which was then led by sovereigntist premier Rene Levesque, endorsed the Constitution in 1982. Two attempts to bring Quebec on board since have both failed.

Cloutier said the new allegations are troublesome in that Quebecers not only had a Constitution imposed on them, but also because judges named by the federal government allegedly intervened in the case.

“It also shows just how far prime minister Pierre Elliott Trudeau was ready to go and what means he was willing to use to force the Constitution down the throat of Quebecers, gestures that are extremely serious,” Cloutier said.

An irked Cloutier said the subject matter discussed was very sensitive and Quebecers deserve to know the truth about what happened.

“It’s the first time that I’m personally aware a Supreme Court justice would have intervened during the repatriation period,” Cloutier said.

“That’s a huge problem for the respect for democracy and institutions.”

Cloutier wants the federal government to make public all the documents relating to the repatriation and “discuss what really happened.”

But the request was dismissed by Ottawa.

“I understand the PQ wants to reopen the constitutional battles with Pierre Trudeau’s former Liberal government,” said Carl Vallee, a spokesman for Prime Minister Stephen Harper.

“We do not intend to play in that movie, we will remain focused on what really matters to Quebecers, Canadians: jobs and growth.”

Premier Pauline Marois vowed the Quebec government wouldn’t stand idly by in the face of Bastien’s revelations of what he describes as a “constitutional coup d’etat.”

The matter will be discussed by PQ ministers during their weekly cabinet meeting on Wednesday.

The other parties in Quebec City say they’re interested in answers but add little would be changed 30 years after the fact.

The Liberals’ Jean-Marc Fournier was prudent in his comments. The party’s new leader, Philippe Couillard, has said he’s in favour of reopening talks on the Constitution.

Fournier emerged from a party caucus meeting and said repatriating the Constitution without Quebec’s approval was a missed opportunity at Canadian unity.

Fournier said if there was judicial intervention, it would be troubling and he would except the federal government to be transparent in the file. But he questioned what opening the books would change now.

The leader of the Coalition for Quebec’s Future echoed that.

“They (the allegations) raise questions, but what does it change in the lives of Quebecers?,” wondered Francois Legault. “I also want the information, but I can’t see that it will change much.”

Newly minted Quebec Liberal party Leader Philippe Couillard is a trained surgeon, an occasional businessman and an amateur fly-fisher. Yet he is best known as a consummate politician who has long held designs on the leadership of the party. In 2008, put off by then-leader Jean Charest’s stubborn hold on power, Couillard resigned as health minister and went into business. He also went fly-fishing on occasion. Both pursuits landed him in hot water.

Following his resignation, Couillard joined Persistence Capital Partners (PCP), a private equity fund “focused on high-growth opportunities in the health care field,” according to PCP’s website. That a former health minister would join a for-profit health care fund ruffled a few feathers, though it shouldn’t have; after all, Quebec has the largest network of private medical clinics in the country.

But Couillard’s association with Arthur Porter, former CEO of the McGill University Health Centre (MUHC), has become a sizable blemish on Couillard’s otherwise impressive political resumé. Once the darling of Quebec’s medical establishment, Porter has since been charged with fraud in relation to alleged bribes he received from SNC-Lavalin in return for the contract to build the MUHC’s new megahospital. Porter, who says he has has advanced lung cancer, is holed up in his Bahamas compound. He has said he is too sick to travel to face the charges.

The two were fast friends and would-be business partners, Couillard has admitted. Recently, La Presse published a 2006 picture of a smiling Couillard and Porter on a fishing trip in New Brunswick. Until 2011, Porter was chair of the security intelligence review committee (SIRC). Couillard himself served on the SIRC board during Porter’s tenure.

The Liberal leader went so far as to register a consulting company with Porter. Couillard never pursued the business, and he struck it from the federal registry the day after he declared his intention to run for the Liberal party leadership.

Yet persistent as they were, the accusations lobbed at Couillard never quite stuck. Certainly, they weren’t enough to put off party delegates, who gave him their overwhelming support. Quebec Liberals are apparently a canny bunch. The party has governed Quebec for nearly six of the last 10 decades, even while Quebecers’ heartstrings lie closer to the more nationalistic Parti Québécois.

If there is to be a Couillard legacy, it will likely be the Constitution. On a Québécois satirical news show recently, Couillard recently said having Quebec endorse the Constitution is a “pet project” of his. Unfortunately for many, he wasn’t joking, having set a goal of having Quebec’s constitutional signature by 2017. His reasoning is this: though Quebec is legally bound by the Constitution, its lack of support (and signature) for the Constitution Act of 1982 remains a psychic wound in Quebec—as well as continued fodder for the sovereignist movement.

As anyone who remembers former prime minister Brian Mulroney’s Meech Lake accord, however, the process of getting to that point is politically fraught and not without its pitfalls. The last round of constitutional talks more than 20 years ago failed and nearly prompted Quebec’s separation from the country. As a result, federalist leaders, Charest and Prime Minister Stephen Harper included, have avoided constitutional chatter. For good or ill, Couillard will likely buck the trend should he become the premier of Quebec one day.

A year after it was suggested he might be working on something in this regard, Conservative Senator Bert Brown explains how the Prime Minister might seek to amend the Constitution to limit the Senate’s ability to block legislation passed by the House.

Mr. Brown said he has since presented the Prime Minister with a mechanism dubbed the Elton-McCormick Override — named for two Lethbridge political scientists — and that Mr. Harper read the plan with interest. The override says if senators want to thwart a House-approved bill, they can do so, but only if the move has the support of a majority of senators in each of seven provinces representing 50% of the population (much like the requirement to amend the constitution itself).

If successful, the House could either “fix [the bill] or forget it,” Mr. Brown explained. The Senate could not, however, force a non-confidence vote or even cause prolonged gridlock because the override only gives senators one month or 12 sitting days to muster the votes for a veto.

The future of the Senate in this regard is particularly interesting given the fact that after 2015, there could be an NDP government in the House and a Conservative majority in the Senate: something the New Democrats have been considering.

It’d be interesting to know when Mr. Harper started to think that limitations might be placed on the Senate’s ability to veto legislation. Presumably it was sometime after Conservative senators killed the Climate Change Accountability Act in 2010.

Philippe Lagasse wrote about the problems with the Harper government’s royal succession bill for this website over the weekend. Now, Anne Twomey adds her concerns.

It is likely that the Canadian Government took the gamble of this approach in order to avoid the hassle of obtaining the agreement of the Provinces while banking upon the likelihood that no one would have the standing or motive to challenge it. Moreover, if the Duchess of Cambridge has a first-born son, it will avoid the problem of having a female monarch of the United Kingdom and a younger brother who becomes the monarch of Canada. Hence, the chances of getting by with such a constitutionally shoddy arrangement are reasonable.

Nonetheless, it shows a disappointing lack of understanding of the Crown and its divisible nature and a willingness on the part of Canadian politicians to sacrifice Canadian independence to avoid having to engage with the Provinces.

Update 12:42pm. And to all these concerns about the nature of our country, the House just shrugged and agreed to pass the bill unanimously at all stages.

]]>http://www.macleans.ca/politics/ottawa/the-de-partiation-of-the-canadian-constitution/feed/16Peter Lougheed was more than just a provincial manhttp://www.macleans.ca/news/canada/more-than-just-a-provincial-man/
http://www.macleans.ca/news/canada/more-than-just-a-provincial-man/#commentsFri, 21 Sep 2012 19:56:01 +0000Colby Coshhttp://www2.macleans.ca/?p=295259Alberta premier fought for a more equitable Constitution for all Canadians

The leadership of the federal Progressive Conservatives was Peter Lougheed’s for the asking from about 1973 onwards. Bob Stanfield approached him almost immediately after his 1974 election defeat, and Joe Clark, who had started political life as a gopher for Lougheed’s election team, made sure to get his all-clear before launching his own campaign. Later, after Clark’s vote-counting powers failed him at a 1983 leadership review, Lougheed was drafted again. That time, he thought about it a little longer.

He concluded—and notice how little self-delusion the man exhibited, compared to many who came after him—that his lack of French was a deal-breaker. Even a man who had once been well-organized enough to combine professional football with law school was unlikely to remedy that in his ’50s.

In truth, he could sincerely see no more satisfying use of his abilities than to be premier of Alberta. That probably still sounds ridiculous to some. It sounded half-crazy to everybody, when Lougheed was a young man. But his political comrades remember him talking about it when he was still nothing but a bundle of ambition—before he had even decided what the particular vehicle for his political ascendancy was going to be.

Look at our Constitution, he would tell them. Who has more power, more specific ability, to guard and improve the welfare of the people—a prime minister, or a premier? Forget which job comes with more glory. Who can do the most good? Very well, a prime minister makes treaties and commands armies. But the premier of a province must decide on the wise use of natural resources; he must set policy for schools and hospitals and the care of the aged. One does not sense that Lougheed made this argument out of any particular abundance of saintliness. The less glamorous job just seemed more interesting as a business proposition, more gratifying as a way to pass the time.

This was the Lougheed mystique: that Alberta, which had been led almost continuously since the war by the host of the Back to the Bible Hour, had suddenly found a premier who was anybody’s equal, who could have been and done anything. He came from money; he was always eloquent about the Depression, but for the family of Sir James Lougheed it involved more embarrassment than actual privation. He excelled in his University of Alberta classes and was a star at football—a handsome, blue-eyed star, mind you. He became student union president; he edited the sports section of the university paper. He went to Harvard for his M.B.A., and fit right in with the future elite of global business. (He would make time for his class’s 25th-anniversary reunion in 1979, smack dab in the middle of an ultra-vicious struggle with Joe Clark’s new government.) It is worth remembering that when Lougheed received Margaret Thatcher in Edmonton in 1983, it was the host, not the guest, who was the grandchild of a Knight Commander of the Order of Saint Michael and Saint George.

And when Lougheed fought with Ottawa, he was able to do so with a tight, hand-picked, intellectually impressive civil service cadre whose ability and imagination surprised the feds. Lougheed’s example and the ’70s oil boom did for Alberta, Inc., what the Quiet Revolution and René Lévesque did for Quebec; they attracted managerial strength, allowing for the creation of an independent base of power. In this, Lougheed’s personal charisma was far from irrelevant.

The fine details of his struggles with Ottawa as premier of Alberta have largely been lost to the public imagination, owing to their enormous complexity. They were probably pretty hard to understand even for ordinary citizens of the time, reading the newspaper every morning. But Albertans knew that at any given moment, irrespective of what party held the reins in federal Parliament, Lougheed was always battling for Albertan control of Alberta resources. Usually he was doing so on multiple fronts. His legal experts fought for Alberta in the courts; he fought for Alberta on live television, at the first ministers’ conferences whose disappearance is part of his legacy. We are all now a bit like the late Elizabethans, in that we have a fragile constitutional settlement that nobody wants to tamper with, and it has become problematic for us to recollect the old religious wars in their full intensity.

It is even less well remembered that Lougheed fought for the same principle—Alberta resources for the benefit of Albertans—against Big Oil. As Lougheed drew closer to the premier’s office, he did not fail to notice that Social Credit’s long-standing royalty regime was making a few millionaires in Alberta, but was yielding overall incomes no better than the national average. He was able to tame the golden goose, adjusting royalties on new wells just in time for the energy boom of the ’70s and making room for the domestic junior exploration companies whose descendants now dominate Alberta’s economy. The supranational oil majors lived with this, facing the ugly alternative of nationalization almost everywhere else on the globe they looked—and understanding that Lougheed was the only thing standing in its way here.

It is bewildering, from the vantage point of 2012, to go back and read the old debates, to see how freely the assumption was made by federal and Ontario politicians that Alberta’s oil patch should be operated for the benefit of central Canada. When Lougheed asked why Ontario manufactures should be sold to Albertans at tariff-protected prices, but Alberta oil ought to be sold to Ontarians at half the Chicago price, no articulate response was possible. Westerners had been asking analogous questions for a long time. But it was Lougheed who saw to the innermost logic of the situation, who saw that the question must ultimately be decided by the province’s power to close the taps.

Lougheed was obsessed with the need to build up a hoard of value before the conventional oil ran out—something he originally expected, like most everyone else at the time, to happen in the early 1980s. That focused his mind on the non-renewability of Alberta’s oil, on the future horrors that every cut-rate barrel pumped eastward would eventually inflict on Alberta. The Alberta oil patch has proven to have a lot more life in it than was believed in the 1970s, but . . . well, the oil really is non-renewable, even though reserves may ebb and flow on the balance sheets. There is only one opportunity to capture the rent from each barrel on behalf of Albertans.

Lougheed would bring the same intellectual incisiveness to the struggle over constitutional patriation that he did to the energy wars of the ’70s. When it came to oil, Alberta’s interests were (and are) explicitly, inherently at odds with those of every net oil consumer in Confederation. When it came to the Constitution, the battle was between the provinces and the federal government—dual spheres of power representing precisely the same populace, which, for its part, would support either side depending on what question it was asked. The solution worked out between Pierre Trudeau and the “Gang of Eight” premiers, of whom Lougheed was the acknowledged leader, is the infamous “notwithstanding” clause. Primary credit (or blame) for the presence of that clause in the Charter belongs to the premiers of Saskatchewan and Manitoba, Allan Blakeney and Sterling Lyon, who alerted fellow gang members to the danger of law substantially made by federally appointed judges without some provincial escape hatch. Lougheed threw his weight behind that effort, and defended the result to the end of his life.

But where the mark of his own claw is clearest is in the amending formula for the Constitution. Trudeau’s original proposal incorporated the formula from the Victoria Charter of 1971, to which all 10 provinces had fleetingly assented before Quebec’s Robert Bourassa pulled out. The Victoria formula would have given Ontario and Quebec permanent vetoes, regardless of their eventual population share. Lougheed spotted this while still Alberta Opposition leader, and complained about it to the Social Credit government of the time (“more on instinct than knowledge,” he confessed in 2001). When Trudeau revived the patriation project in 1974, Lougheed decided to put some work into presenting a coherent alternative.

The 7/50 formula in the 1982 Constitution Act, along with the “unanimity formula” required for core changes under section 41, are the acknowledged work of Lougheed and his inner circle. In the constitutional bargaining, Lougheed was willing to give way on bilingualism, equalization, Senate reform and countless other matters, as long as he was able to secure an amending formula that did not create permanent second-class provinces. Parts of the Constitution may come and go, he would tell people: the amending formula, if we are going to bring the Constitution home, is forever.

It is, at any rate, as close to “forever” as the work of a legislator can come. If Pierre Trudeau was the originator and champion of the 1982 Constitution, Peter Lougheed was its toughest editor—a framer whose importance to the outcome of the project ranked, at worst, a close second.

The leadership of the federal Progressive Conservatives was Peter Lougheed’s for the asking from about 1973 onwards. Bob Stanfield approached him almost immediately after his 1974 election defeat, and Joe Clark, who had started political life as a gopher for Lougheed’s election team, made sure to get his all-clear before launching his own campaign. Later, after Clark’s vote-counting powers failed him at a 1983 leadership review, Lougheed was drafted again. That time, he thought about it a little longer.

He concluded—and notice how little self-delusion the man exhibited, compared to many who came after him—that his lack of French was a dealbreaker. Even a man who had once been well-organized enough to combine professional football with law school was unlikely to be able to remedy that in his fifties.

In truth, he could sincerely see no more satisfying use of his abilities than to be Premier of Alberta. That probably still sounds ridiculous to some. It sounded half-crazy to everybody, when Lougheed was a young man. But his political comrades remember him talking about it when he was still nothing but a bundle of ambition—before he had even decided what the particular vehicle for his political ascendancy was going to be.

Look at our constitution, he would tell them. Who has more power, more specific ability, to guard and improve the welfare of the people—a prime minister, or a premier? Forget which job comes with more glory. Who can do the most good? Very well, a prime minister makes treaties and commands armies. But the premier of a province must decide on the wise use of natural resources; he must set policy for schools, and hospitals, and the care of the aged. One does not sense that Lougheed made this argument out of any particular abundance of saintliness. The less glamorous job just seemed more interesting as a business proposition, more gratifying as a way to pass the time.

This was the Lougheed mystique: that Alberta, which had been led almost continuously since the war by the host of the Back to the Bible Hour, had suddenly found a premier who was anybody’s equal, who could have been and done anything. He came from money; he was always eloquent about the Depression, but for the family of Sir James Lougheed it involved more embarrassment than actual privation. He excelled in his University of Alberta classes and was a star at football—a handsome, blue-eyed star, mind you. He became Student Union president; he edited the sports section of the university paper. He went to Harvard for his MBA, and fit right in with the future elite of global business. (He would make time for his class’s 25th-anniversary reunion in 1979, smackdab in the middle of an ultra-vicious struggle with Joe Clark’s new government.) It is worth remembering that when Lougheed received Margaret Thatcher in Edmonton in 1983, it was the host, not the guest, who was the grandchild of a Knight Commander of the Order of Saint Michael and Saint George.

And when Lougheed fought with Ottawa, he was able to do so with a tight, handpicked, intellectually impressive civil-service cadre whose ability and imagination surprised the feds. Lougheed’s example and the ’70s oil boom did for Alberta, Inc., what the Quiet Revolution and Rene Levesque did for Quebec; they attracted managerial strength, allowing for the creation of an independent base of power. In this, Lougheed’s personal charisma was far from irrelevant.

The fine details of his struggles with Ottawa as premier of Alberta have largely been lost to the public imagination, owing to their enormous complexity. They were probably pretty hard to understand even for ordinary citizens of the time, reading the newspaper every morning. But Albertans knew that at any given moment, irrespective of what party held the reins in federal Parliament, Lougheed was always battling for Alberta control of Alberta resources. Usually he was doing so on multiple fronts. His legal experts fought for Alberta in the courts; he fought for Alberta on live television, at the First Ministers’ conferences whose disappearance is part of his legacy. We are all now a bit like the late Elizabethans, in that we have a fragile constitutional settlement that nobody wants to tamper with, and it has become conceptually problematic for us to recollect the old religious wars in their full, vivid intensity.

It is even less well remembered that Lougheed fought for the same principle—Alberta resources for the benefit of Albertans—against Big Oil. As Lougheed drew closer to the premier’s office, he did not fail to notice that Social Credit’s longstanding royalty regime was making a few millionaires in Alberta, but was yielding overall incomes no better than the national average. He was able to tame the golden goose, adjusting royalties on new wells just in time for the energy boom of the Seventies and making room for the domestic junior exploration companies whose descendants now dominate Alberta’s economy. The supranational oil majors lived with this, facing the ugly alternative of nationalization almost everywhere else on the globe they looked—and understanding that Lougheed was the only thing standing in its way here.

It is bewildering, from the vantage point of 2012, to go back and read the old debates, to see how freely the assumption was made by federal and Ontario politicians that Alberta’s oilpatch should be operated for the benefit of Central Canada. When Lougheed asked why Ontario manufactures should be sold to Albertans at tariff-protected prices, but Alberta oil ought to be sold to Ontarians at half the Chicago price, no articulate response was possible. Westerners had been asking analogous questions for a long time. But it was Lougheed who saw to the innermost logic of the situation, who saw that the question must ultimately be decided by the province’s power to close the taps.

Lougheed was obsessed with the need to build up a hoard of value before the conventional oil ran out—something he originally expected, like most everyone else at the time, to happen in the early 1980s. That focused his mind on the non-renewability of Alberta’s oil, on the future horrors that every cut-rate barrel pumped eastward would eventually inflict on Alberta. The Alberta oilpatch has proven to have a lot more life in it than was believed in the 1970s, but… well, the oil really is non-renewable, even though reserves may ebb and flow on the balance sheets. There is only one opportunity to capture the rent from each barrel on behalf of Albertans.

Lougheed would bring the same intellectual incisiveness to the struggle over constitutional patriation that he did to the energy wars of the ’70s. When it came to oil, Alberta’s interests were (and are) explicitly, inherently at odds with those of every net oil consumer in Confederation. When it came to the Constitution, the battle was between the provinces and the federal government—dual spheres of power representing precisely the same populace, which, for its part, would support either side depending on what question it was asked. At least one of the relevant paradoxes probably still holds: Canadians like the idea of an explicit rights charter defended by a strong judiciary. They don’t like unelected judges taking the place of legislatures. It’s all in the wording.

The solution worked out between Pierre Trudeau and the “Gang of Eight” premiers, of whom Lougheed was the acknowledged leader, is the infamous “notwithstanding” clause. Primary credit (or blame) for the presence of that clause in the Charter belongs to the premiers of Saskatchewan and Manitoba, Allan Blakeney and Sterling Lyon, who alerted fellow Gang members to the danger of law substantially made by federally appointed judges without some provincial escape hatch. Lougheed threw his weight behind that effort, and defended the result to the end of the life.

But where the mark of his own claw is clearest is in the amending formula for the Constitution. Trudeau’s original proposal incorporated the formula from the Victoria Charter of 1971, to which all ten provinces had fleetingly assented before Quebec’s Robert Bourassa pulled out. The Victoria formula would have given Ontario and Quebec permanent vetoes, regardless of their eventual population share. Lougheed spotted this while still Alberta Opposition leader, and complained about it to the Social Credit government of the time (“more on instinct than knowledge,” he confessed in 2001). When Trudeau revived the patriation project in 1974, Lougheed decided to put some work into presenting a coherent alternative.

The 7/50 formula in the 1982 Constitution Act, along with the “unanimity formula” required for core changes under section 41, are the acknowledged work of Lougheed and his inner circle. In the constitutional bargaining, Lougheed was willing to give way on bilingualism, equalization, Senate reform, and countless other matters, as long as he was able to secure an amending formula that did not create permanent second-class provinces. Parts of the constitution may come and go, he would tell people: the amending formula, if we are going to bring the constitution home, is forever.

It is, at any rate, as close to “forever” as the work of a legislator can come. If Pierre Trudeau was the originator and champion of the 1982 constitution, Peter Lougheed was its toughest editor—a framer whose importance to the outcome of the project ranked, at worst, a close second.

]]>http://www.macleans.ca/authors/colby-cosh/peter-lougheed-r-i-p/feed/8Quebec and the constitutionhttp://www.macleans.ca/politics/ottawa/quebec-and-the-constitution/
http://www.macleans.ca/politics/ottawa/quebec-and-the-constitution/#commentsFri, 24 Aug 2012 14:52:11 +0000Aaron Wherryhttp://www2.macleans.ca/?p=286002Marc Garneau considers Quebec and the repatriation of the constitution.
In the best of all possible worlds, Quebec would have joined the nine other provinces in 1982 and agreed to …

Marc Garneau considers Quebec and the repatriation of the constitution.

In the best of all possible worlds, Quebec would have joined the nine other provinces in 1982 and agreed to the repatriation of the constitution. René Levesque should definitely have been invited to the midnight talks on the eve of a crucial, although not final, step. Having said that, I believe the outcome would have been the same because the PQ was in power at the time. This has more to do with politics than the content of the document. The final document was not so very different from what René Levesque had previously agreed to with seven other provincial premiers. He even confirmed this later when he stated that he could not sign without running the risk of creating a deep rift in his party. In short, he had neither the will nor the ability to act differently.

Thirty years later, whether or not it was endorsed by the Government of Quebec, Quebec avails itself of the Constitution, the Charter, the amending formula and the notwithstanding clause in order to achieve its political objectives. In other words, it applies the law. We must therefore take into consideration the practical results of the repatriation and not only the way in which it occurred. IN MY OPINION, the results were very positive for Canadians and Quebeckers.

]]>http://www.macleans.ca/politics/ottawa/quebec-and-the-constitution/feed/0‘New Democrats will continue to work to ensure that one day it becomes part of a Constitution that includes us all’http://www.macleans.ca/politics/ottawa/new-democrats-will-continue-to-work-to-ensure-that-one-day-it-becomes-part-of-a-constitution-that-includes-us-all/
http://www.macleans.ca/politics/ottawa/new-democrats-will-continue-to-work-to-ensure-that-one-day-it-becomes-part-of-a-constitution-that-includes-us-all/#commentsTue, 17 Apr 2012 19:53:07 +0000Aaron Wherryhttp://www2.macleans.ca/?p=252892A statement from NDP leader Thomas Mulcair on the anniversary of the Charter.
It has been three decades since Canada chose to codify and protect our fundamental rights as citizens …

A statement from NDP leader Thomas Mulcair on the anniversary of the Charter.

It has been three decades since Canada chose to codify and protect our fundamental rights as citizens in the Charter of Rights and Freedoms.

Today the Charter stands as an example the world over. It reminds us that respect for basic human rights is a vital part of every modern society, and that any threat to these rights constitutes a threat to society as a whole.

New Democrats are proud of the role we played in shaping the Charter of Rights and Freedoms—including Tommy Douglas’ passage of Canada’s first Bill of Rights in Saskatchewan and the role Ed Broadbent played in ensuring that women’s rights were enshrined in the Charter itself.

At the same time, the anniversary of the Charter also serves to remind us that, 30 years after the repatriation of the Constitution, Quebec is still not a signatory to the most fundamental compact of our democracy.

As such, New Democrats will continue on the path laid out by Jack Layton, working to create the conditions that will one day allow Quebec to embrace the Canadian constitutional framework. We will work tirelessly to give real meaning to the unanimous recognition that the Québécois form a nation within Canada.

The Charter of Rights and Freedoms is a document that reflects our most fundamental common values. New Democrats will continue to work to ensure that one day it becomes part of a Constitution that includes us all.

]]>http://www.macleans.ca/politics/ottawa/new-democrats-will-continue-to-work-to-ensure-that-one-day-it-becomes-part-of-a-constitution-that-includes-us-all/feed/11‘An important step’http://www.macleans.ca/politics/ottawa/an-important-step/
http://www.macleans.ca/politics/ottawa/an-important-step/#commentsTue, 17 Apr 2012 15:17:58 +0000Aaron Wherryhttp://www2.macleans.ca/?p=252808A statement from Heritage Minister James Moore and Justice Minister Rob Nicholson on the Charter.
Today marks the 30th Anniversary of the Proclamation of the Constitution Act of 1982, which …

A statement from Heritage Minister James Moore and Justice Minister Rob Nicholson on the Charter.

Today marks the 30th Anniversary of the Proclamation of the Constitution Act of 1982, which was formally signed by Her Majesty Queen Elizabeth II on April 17, 1982, in the presence of tens of thousands of Canadians on Parliament Hill in Ottawa.

This anniversary marks an important step in the development of Canada’s human rights policy. Building on Diefenbaker’s Canadian Bill of Rights of 1960, the Constitution Act of 1982 enshrined certain rights and freedoms that had historically been at the heart of Canadian society into a constitutional document known as the Charter of Rights and Freedoms.

The Constitution Act of 1982 empowered our government to amend every part of Canada’s constitution, for the very first time.

As we look ahead to Canada’s 150th Anniversary in 2017, we encourage all Canadians to commemorate the milestones that have built our nation and made us the great country we are today.

Interim Liberal leader Bob Rae’s statement on the 30th anniversary of the Charter.

“On the steps of Parliament Hill, 30 years ago today, Pierre Elliott Trudeau’s Liberal government signed the historic Canada Act, 1982, patriating our Constitution and making the Charter of Rights and Freedoms the supreme law of the land.

The Charter enshrines our most cherished Canadian values. It reflects our belief that Canadians have a fundamental right to live free from discrimination, to assemble peacefully and express our opinions, to vote in elections unimpeded, to be presumed innocent until proven guilty, and fundamentally, that our individual rights take precedence over the rights of government.

Abroad, the Charter is the constitutional document most emulated by other countries, standing as a model for new democracies who share our goals and values, and as a resource to draw from for others. Here at home, the Charter continues to evolve, with court decisions and legal reforms by Parliament and provincial legislatures opening the door to same-sex rights, minority language rights and abortion rights, and shutting the door on capital punishment, torture and gender-based discrimination.On a personal note, I was honoured to be able to speak in favour of the Charter in the House of Commons debates many years ago, and to vote for the patriation of the constitution with the Charter.

Thirty years later, the impact of the Charter on Canadian society has been significant and lasting. The Charter does not belong to one political party or one group, it belongs to all Canadians. As my colleague Liberal Justice and Human Rights critic Irwin Cotler wrote recently in the Toronto Star, ‘The Charter merits both recognition and respect from the government, reflective of the reverence it is accorded by both Parliament and the judiciary.’

Tonight, Liberals will celebrate this defining moment in our country’s history at a rally with former Prime Minister Jean Chrétien who, as a young Attorney General, participated in that iconic signing ceremony 30 years ago today. Together, we will salute the vision of Prime Minister Trudeau, and stand with Canadians from coast to coast to coast, in commemorating the 30th Anniversary of the Charter, which continues to shape our individual and collective identities.”

]]>http://www.macleans.ca/politics/ottawa/the-charter-enshrines-our-most-cherished-canadian-values/feed/6Happy Charter Dayhttp://www.macleans.ca/politics/ottawa/happy-charter-day/
http://www.macleans.ca/politics/ottawa/happy-charter-day/#commentsTue, 17 Apr 2012 12:01:33 +0000Aaron Wherryhttp://www2.macleans.ca/?p=252706The Prime Minister isn’t quite ready to celebrate.
Harper alluded to the fact that Quebec did not sign on to the Constitution Act of 1982, of which the Charter was …

Harper alluded to the fact that Quebec did not sign on to the Constitution Act of 1982, of which the Charter was a part. Two other attempts to bring Quebec into the constitutional fold — the Meech Lake and Charlottetown Accords — failed. “In terms of this as an anniversary, I think it’s an interesting and important step, but I would point out that the Charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country,” Harper said.

Thomas Mulcair wasn’t too keen on the Charter ten years ago when he was a member of the Quebec assembly. Jean Chretien says the Night of the Long Knives is more myth than reality. And, on the same note, former Newfoundland premier Brian Peckford wants his due.

There was very little interesting about Stephen Harper’s decision not to fête the 30th anniversary of the Charter of Rights until he spoke about it.

Simply declining to celebrate an anniversary is no sin. Every day is an anniversary of something, and it’s a handy rule of thumb that quarter-centuries are best for festivity, or mourning, or any kind of acknowledgment. It’s true that Harper conspicuously didn’t celebrate the quarter-century of the Charter in 2006, but he was two months into office then and his government wasn’t exactly breathtaking in its agility. [UPDATE: Well, that's wrong. It was 2007. Insert some other mitigating rhetorical dance here. -pw ] Plus it’s a bit weird to use coverage of failure-to-commemorate-the-30th as a pretext to remind everyone of failure-to-commemorate-the-25th.

So, silence would have done little to placate people, including certain of my colleagues, who are pacing back and forth looking for something to be furious about. But it would have been essentially uninteresting. His motives would have been a matter of conjecture, and conjecture’s no fun in the absence of evidence.

But now he’s spoken and things are more interesting. From CP reporter Jennifer Ditchburn’s account of the PM’s remarks in Chile:

“‘In terms of the anniversary, the Charter was an important step forward in the development of Canadian rights policy, a process that began in earnest with (Conservative prime minister) John Diefenbaker’s Bill of Rights in 1960, so it’s a little over 50 years old,’ Harper said.

“Diefenbaker’s Bill of Rights was not entrenched in the Constitution and did not carry the same weight in the courts as the Charter eventually did.

“Harper alluded to the fact that Quebec did not sign on to the Constitution Act of 1982, of which the Charter was a part. Two other attempts to bring Quebec into the constitutional fold — the Meech Lake and Charlottetown Accords — failed.

“‘In terms of this as an anniversary, I think it’s an interesting and important step, but I would point out that the Charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country,’ Harper said.

Well. The prime minister is hardly trash-talking the constitution here. He calls the 1982 amendments “important” and “interesting” and “important.” He does sound a bit wary and forlorn about the lack of consensus. Already, on the ravenous global Twitter chatterbox, colleagues are upset that he is parrotting Quebec nationalists’ rhetoric about “divisions…which are still very real” around patriation.

I’m afraid my feelings are mixed. I believe the Charter is a good thing. It gives citizens power no government can take: its effect is often profoundly libertarian. I believe repatriation was a bit of a schmozzle, but when you have an embittered defeated Péquiste at the table, an already inelegant process is likely to become even more of a mess, and that’s life. (Harper was speaking in Chile. Take a look at theirconstitutional gong show.) I was supposed to speak at a conference on repatriation last week in Montreal, and I begged off because of time constraints, but I didn’t mind begging off because I didn’t really feel like challenging the local sooky consensus. “Woe is us!” “Humiliation and woe!” “Pain and suffering!” “And now, Paul Wells.”

But there is no necessary or even frequent connection between emotions and evidence, and emotions are real. And it’s hardly just in Outremont’s more self-indulgent salons that the Charter is seen as a bad show. When the newish Conservative party had its first convention in Montreal, the foundering Western Standard magazine distributed lapel pins with “It’s the stupid Charter!” on them. I’ll leave it to the magazine’s then-editor, Kevin Libin, to explain what the point of that was, because as the linked article shows, Kevin was pretty good at finding everyone else’s explanations wrong.

But my point, or part of it, is that there’s no consensus in the country around even as mildly rah-rah a conception of the Charter as mine. Harper’s first chief of staff, Ian Brodie, will by now be getting tired of my pointing out that his PhD thesis asserted a Liberal-judicial racket to make sure the Charter gets interpreted a certain way. Harper’s fellow firewall theorist, Ted Morton, wrote a book with Rainer Knopff, who in 2010 helped Harper find a new governor general, that says all kinds of un-celebratory things about the Charter. The Court Party of the book’s title is, more or less, Brodie’s “Friends of the Court:” “a well orchestrated network of state-funded interest groups that use litigation and the media to achieve what they can’t win through democratic elections.”

Morton is currently having a bad few weeks on the campaign trail, but at one point in his academic career he was using “Reform Party” as a direct antonym for “Court Party.” Morton’s “Reform Party” wasn’t perfectly synonymous with, you know, the Reform Party, but the differences were slight.

Anyway, no consensus. Some people think the repatriation, or the Charter, was problematic. What’s striking here is that Harper chooses to honour and reinforce the lack of consensus. That’s a choice he made. It’s hardly unusual for a prime minister to reinforce a consensus, or to assert there’s one where there wasn’t before. In 2004 he abandoned his earlier opposition to (one could say “Trudeau-style”) official bilingualism, and when his friend and colleague, the MP Scott Reid, didn’t zig when Harper zigged, the Conservative leader essentially cut Reid off from further significant party roles.

Then in 2006 he appointed the journalist Graham Fraser as languages commissioner. Fraser’s language politics are Trudeau’s when they aren’t tinged with a greater sympathy for Quebec nationalism than Trudeau could muster. It would have been profoundly out of character for Harper (“as a religion, bilingualism is the god that failed”) to put that guy in charge of official languages as late as two years before he did. But Harper didn’t want a fight on those grounds, so he not only changed his stance, he enforced the change, to the chagrin of once-valued colleagues like Reid.

He’s done the same on smaller files — supply management, certain Elections Act provisions he used to find draconian, and so on. The most striking example of Harper’s embracing formerly alien symbols is the flag, adopted by Pearson while Diefenbaker wept, now a central part of Conservative iconography.

He could have done the same with the Charter. No, the Charter is not “the Constitution,” as people who accuse Harper of snubbing “the Constitution” claim. It’s part of the complex and evolving Canadian Constitution, which otherwise includes longstanding treaties with the First Nations, inherited British constitutional convention, large unamended sections of the 1867 British North America Act, and every week’s new jurisprudence at the Supreme Court. But for that reason, it would not have been hard or costly for Harper to embrace Trudeau’s Charter as easily as he has embraced Pearson’s flag.

He’s chosen not to. Decide for yourself whether to celebrate or mourn. I’m left with one nagging worry. In about a year Quebec will probably have a Parti Québécois premier, Pauline Marois. This is probably not a big problem: she’s likely to bump along, pushed by her party base to hold a secession referendum but unable to do so because of lousy polls. It’s always good for Canada when the PQ tears itself apart. But things could get weird, and another secession referendum can’t be ruled out. In that environment, a Harper charm offensive wouldn’t get far, because few Quebecers find Harper charming. He’d have to fall back on the law, including the Supreme Court’s opinion in the Secession Reference. Given the potential stakes, I’d rather he didn’t use the constitution to fight political battles.

]]>http://www.macleans.ca/politics/ottawa/stephen-harpers-spite-of-charter-30th-anniversary-edition/feed/74When you care enough to send the very besthttp://www.macleans.ca/politics/ottawa/when-you-care-enough-to-send-the-very-best/
http://www.macleans.ca/politics/ottawa/when-you-care-enough-to-send-the-very-best/#commentsFri, 13 Apr 2012 12:30:55 +0000Aaron Wherryhttp://www2.macleans.ca/?p=252261The Harper government will mark the 30th anniversary of the Charter of Rights and Freedoms and the repatriation of the Constitution with a news release. Irwin Cotler is unimpressed.
Simply …

The Harper government will mark the 30th anniversary of the Charter of Rights and Freedoms and the repatriation of the Constitution with a news release. Irwin Cotler is unimpressed.

Simply put, the Charter of Rights and Freedoms is promotive and protective of what the pursuit of justice is all about. It is promotive and protective not only of the inherent dignity and worth of every human being, but the equal dignity and worth of all human beings — where one can aspire to a society which celebrates both equality and human dignity — a society which not only speaks to us in terms of who we are — that recognizes the dignity of difference — but also in terms of what we as Canadians, both collectively and individually, can aspire to be.

It would be only appropriate for the government to recognize the singular significance of the Charter by celebrating and commemorating its 30th anniversary, and recognize its place and importance in both the juridical and political history of Canada, and beyond.

Brian Topp’s latest policy paper covers democratic and parliamentary reform, including a move to mixed-member proportional representation, limits on the prime minister’s ability to prorogue Parliament and the Senate.

I propose that our party ask for a mandate in the next election to abolish the Senate. I then propose that an Act be introduced early in the life of the next Parliament amending the constitution to do so.

The urgency with which this matter is then pursued with provinces (who will have to consent to this modernization, which was adopted in all provincial legislatures long ago) should then depend on the conduct of the Senate during the next Parliament. If the Senate provokes a constitutional crisis by blocking a budget or other important legislation, Senate abolition should be pursued as an immediate and urgent priority. If the Senate returns to its traditional role and subordinates itself to the House of Commons, then the matter can be pursued more deliberately over the course of the next Parliament.

Kathryn Blaze Carlson’s consideration of an elected Senate includes an intriguing anecdote from Senator Bert Brown.

Mr. Brown recalls how he and Mr. Harper discussed at Caesar’s how a reformed, elected Senate and an unchanged House of Commons might interact: A Senate with newfound democratic legitimacy might rival the House in ways never before seen, and both men knew there was nothing in the Constitution preventing a deadlock or even a Senate-sparked government shut-down.

The prime minister asked Mr. Brown to come up with a mechanism that would protect the supremacy of the House of Commons. But that safeguard would require the sort of stand-alone constitutional amendment Mr. Harper knows would be a nightmare to attempt.

This begs various questions: Is the government going to act to protect the supremacy of the House of Commons? If so, how? And if the Senate is to remain secondary, why not just abolish it?

The House of Commons law clerk considers Dean Del Mastro’s demand that the CBC turn over documents related to a matter already before the courts.

The sub judice convention is based on the principle that each branch of our parliamentary system of government should respect the functions of the other branches and not interfere or appear to do what belongs to one of the other branches to do. Our parliamentary system of government is based on a separation of the three basic governmental powers or functions: the executive, the legislative and the judicial. The judicial branch operates—and must be seen to operate—fully independent of both the executive and legislative branches. The credibility of the law courts as impartial arbiters of legal rights and as interpreters of the law depends on a clear recognition by the other branches of their independence.

Mr. Del Mastro previously, if temporarily, sought to have a sitting judge testify before a parliamentary committee.

We could build a couple NHL arenas. Or we could lower the voting age, institute mandatory voting and reopen the Constitution.

Canada’s 150th birthday bash in 2017 could highlight the fun and symbolic — such as a nationwide hockey tournament and a cross-country canoe pageant — but could also involve serious policy changes, such as lowering the voting age to 16 or instituting mandatory voting, newly obtained public documents show…

Bureaucrats reckon 2017 could be an opportunity to reopen debate on Canadian federalism. ”This discussion has been held for boomers (in the ’80s and ’90s), but it’s not closed yet,” officials write. “By 2017, a whole new generation will have a whole new outlook.” Jeremy Diamond, director of the Historica Dominion Institute, expressed support for democratic reform initiatives. He said the 18-24 age range is ripe for increased political participation, and that Canada’s 150th could be an ideal time to restart the constitution debate.

Today’s Starhas a piece from Susan Delacourt in which scholarly all-rounder Ned Franks calls Senate elections “dead in the water” and “sure to get shot down by the Supreme Court”. I don’t want to call this a misrepresentation of the expert consensus, nor to challenge the stature of Ned Franks, but it seems to me that few other opponents of Senate elections are as confident as these quotes suggest. As I wrote, it is not clear exactly how much change Parliament is free to make to constitutional arrangements by statute alone. The Constitution Act text says that the 7/50 amending formula has to be followed before “the powers of the Senate and the method of selecting Senators” are changed. But under C-7, Senators are explicitly still appointed by the Governor-General as before. (“Senators to be appointed for a province or territory should be chosen from a list of Senate nominees submitted by the government of the province or territory.”)

Indeed, the flow of moral force through the text of the bill shows amusing evidence of judiciary-proofing. Look at section 2 of C-7:

2. The framework in the schedule sets out a basis for the selection of Senate nominees.

Key phrase, for the purpose of a future court test: “Senate nominees”, as opposed to Senators. The message to the courts is that we are not creating a formally elected Senate, but merely a means of bringing “nominees” to the attention of the Prime Minister. It’s an important distinction, also observed in s.3 of the bill:

3. If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

Key phrase: “must consider”, as opposed to “must accept” or “must recommend”. The bill is carefully keeping its toes within the boundaries set out by Peter Hogg in a discussion of a still earlier, failed Conservative reform bill:

…right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.

So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn’t want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.

I fully recognize… obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law.

As crafty as those concluding words sound, I do not see how Hogg’s logic is assailable. I’m not an advocate of Senate elections per se. But Franks-style constitutional opposition to Senate reform requires acceptance of an absurdity: that otherwise qualified candidates for the upper house somehow become morally ineligible if they happen to have won a vote. The Constitution can and does stop people from entering the Senate solely by virtue of election. I don’t see how it can thwart a scheme for holding advisory elections that are binding only by virtue of the common regard in which we hold procedurally fair expressions of democratic sentiment.

]]>http://www.macleans.ca/authors/colby-cosh/that-senate-reform-bill-alive-in-the-water/feed/1A non-binding, voluntary basis for encouragement to consider fundamental changehttp://www.macleans.ca/politics/ottawa/a-non-binding-voluntary-basis-for-encouragement-to-consider-fundamental-change/
http://www.macleans.ca/politics/ottawa/a-non-binding-voluntary-basis-for-encouragement-to-consider-fundamental-change/#commentsTue, 21 Jun 2011 16:07:54 +0000Aaron Wherryhttp://www2.macleans.ca/?p=198526The government has now tabled its Senate Reform Act.
It would not require provinces and territories to implement consultation processes but would strongly encourage them to do so. It also …

It would not require provinces and territories to implement consultation processes but would strongly encourage them to do so. It also demonstrates support for those provinces that have already undertaken legislation to establish such democratic processes.

The Act includes a voluntary schedule, based on Alberta’s Senatorial Selection Act, which would set out a basis for provinces to enact democratic processes.

The Act would not be binding on the Prime Minister or the Governor General when making appointments to the Senate. However, it would require the Prime Minister to consider the recommended names from a list of elected Senate nominees when recommending Senate appointments.

Last week’s Throne Speech was expected to be bereft of surprises. As it happened, a cranky Senate page with a handmade sign ensured that the event wasn’t a complete bore. But there was another, subtler eyebrow-raiser in the works. Despite prior reports of Conservative caucus dissension over Senate reform, Governor General David Johnston’s scripted words expressed the Prime Minister’s determination to act fast on it. Reform “remains a priority for our government,” Johnston reported, promising to reintroduce legislation—thwarted by weighty Oppositions in the past—“to limit term lengths and to encourage provinces and territories to hold elections for Senate nominees.”

The Conservative plan to tweak the Senate without opening up a politically unthinkable Constitution-amending process seems about to take its long-awaited first step. And that implies a reignition of the debate over whether a prime minister can actually get away with such a thing. Quebec’s government is already threatening to haul the feds before the Supreme Court to block term-limit and Senate-election legislation. “If they try that, the Court is literally going to laugh at them,” says a confident Sen. Bert Brown, the Conservative reform advocate elected as an Alberta “senator-in-waiting” in 2004 and appointed to the upper house in 2007.

Constitutional scholars are unsure whether Brown is right. The government’s theory is that there is no “manifest conflict”—to use the phrase of Simon Fraser University political scientist Andrew Heard—between Senate elections and the text of the Constitution. The Constitution merely says that the governor general will “summon qualified persons to the Senate”; it does not say Parliament cannot invent new methods of making candidates available for his consideration.

Under the 1982 Constitution, a constitutional amendment would be necessary to change “the method of selecting senators.” (Term limits, on the other hand, are kosher.) “But there is no element of command in Bill S-8,” argues Brown, referring to a Senate-election law briefly brought before the upper house in April. The appointments of elected senators would still adhere to the form prescribed in the Constitution, with the governor general having final say. “The bill merely establishes a guidance framework for the elections themselves.” Brown expects the government to go ahead with an exact copy of S-8, which would allow provinces to hold Senate elections simultaneously with the elections to their own legislatures.

A slightly earlier pass at Senate reform, 2008’s Bill C-20, inspired House of Commons committee hearings on the constitutionality of Senate elections. Most scholars thought they would pass muster with courts, though not without considerable grudgingness. There is confusion over the exact test to be applied. A 1980 Supreme Court decision, the so-called “Upper House Reference,” established a principle that “fundamental features” of the Senate cannot be altered by Parliament alone. Some thinkers, notably oft-cited Osgoode Hall constitutional expert Peter Hogg, insist that the Upper House Reference was made moot by the renovated Constitution of 1982. A few others, like Heard, think the reference possesses lingering force.

“I don’t think the material logic of that case has been altered by other constitutional changes,” Heard reiterates. If he is right, and if unelectedness is “fundamental” to the Senate, a court would have to decide whether to regard provincial Senate elections as a mere means of allowing the PM and the GG to consult with the provinces, or as an illicit provincial obtrusion onto federal territory.

]]>http://www.macleans.ca/politics/senate-reform-goes-centre-stage/feed/7Reform or busthttp://www.macleans.ca/politics/ottawa/reform-or-bust/
http://www.macleans.ca/politics/ottawa/reform-or-bust/#commentsTue, 31 May 2011 17:59:15 +0000Aaron Wherryhttp://www2.macleans.ca/?p=194765In response to Stephen Harper’s proposed Senate reforms, the Quebec government says it will see the Prime Minister in court. Ontario Premier Dalton McGuinty suggests it would be best to…

In response to Stephen Harper’s proposed Senate reforms, the Quebec government says it will see the Prime Minister in court. Ontario Premier Dalton McGuinty suggests it would be best to simply abolish the Senate. Nova Scotia Premier Darrell Dexter says reform has to involve the provinces, but equally wonders about the Senate’s reason for being.

“My position on the Senate in the past has been that I think the House of Commons is elected for the purpose of representing the people of the country,” he said. “The upper house is not necessary.”

]]>http://www.macleans.ca/politics/ottawa/reform-or-bust/feed/10Hypotheticals (II)http://www.macleans.ca/politics/ottawa/hypotheticals-ii/
http://www.macleans.ca/politics/ottawa/hypotheticals-ii/#commentsSat, 30 Apr 2011 18:26:52 +0000Aaron Wherryhttp://www2.macleans.ca/?p=188772Peter Russell lays out the options.
When the House does meet and no party has a majority, there are basically three ways of forming a government. First, the Conservatives can …

When the House does meet and no party has a majority, there are basically three ways of forming a government. First, the Conservatives can simply carry on as a minority government hoping to win support, issue by issue, from opposition MPs. Second, either the Conservatives or the party that finishes second in seat numbers can form a legislative alliance with one or more other parties that would agree to support them on the basis of a shared legislative program. Such an agreement between David Peterson’s Liberals (who finished second to Frank Miller’s Conservatives) and Bob Rae’s NDP gave Ontario a stable minority after the 1985 provincial election. In this option, the parties supporting a Liberal or NDP government would not have cabinet positions. The third option is a coalition government in which two or more parties form a government and share cabinet posts.

All three options are constitutionally legitimate. Indeed, in the dozens of parliamentary democracies around the world, it’s highly unusual for any party to have a parliamentary majority. Governments in most of these countries are either coalitions or single-party minorities supported through alliances with opposition parties.

]]>http://www.macleans.ca/politics/ottawa/hypotheticals-ii/feed/27The NDP, Quebec and the constitutionhttp://www.macleans.ca/politics/ottawa/the-ndp-quebec-and-the-constitution/
http://www.macleans.ca/politics/ottawa/the-ndp-quebec-and-the-constitution/#commentsWed, 27 Apr 2011 12:01:03 +0000Paul Wellshttp://www2.macleans.ca/?p=187407Yesterday on a campaign swing through Quebec, Jack Layton was asked whether as prime minister he would accept the result of a Parti Québécois referendum on sovereignty. “La réponse est …

Yesterday on a campaign swing through Quebec, Jack Layton was asked whether as prime minister he would accept the result of a Parti Québécois referendum on sovereignty. “La réponse est oui,” he said cheerfully. That seemed to me a bit short.

The Supreme Court has had quite a bit to say on the matter. Other provinces have legislation on the books requiring a referendum to ratify constitutional amendments affecting those provinces, and constitutional amendments would be required for secession to be legal. And there is, of course, the Clarity Act, which calls on the House of Commons to judge the clarity of any referendum question, and then again of the referendum result. The NDP voted in favour of the Clarity Act after Alexa McDonough learned, in very late innings in 1999, that there is real and substantial political cost outside Quebec for trying to be as insouciant about all these matters as the Parti Québécois likes to be.

I take these issues pretty damned seriously. I covered the 1995 referendum, the Supreme Court hearings on Clarity, the release of the ruling, and every step of the process that led to the passage of the Clarity Act. So I was pleased last night when Brian Topp contacted me and offered to clear all this up. Topp is a former NDP campaign director from earlier elections who has been less directly involved with the Layton campaign this year, but he told me he was speaking with the approval of the Layton campaign and for the record. After we spoke he sent me an email summary of his main points, which matches the substance of the notes I took during our phone conversation. Here is Topp’s own summary of his points, with parenthetical additions by me to help make it all more comprehensible.

I believe this all leaves Layton with pretty serious questions left to answer before he will be worthy of anybody’s trust on fundamental questions of constitutional stewardship. But I have to say that until the other national leaders get over their own games of peekaboo on the same questions, it’s hard to be sure that Layton is the worst of the lot. In particular, the silence of Stephen Harper, who is still today the Prime Minister of Canada, speaks volumes.

Topp’s summary of his remarks:

• The Quebec National Assembly has not ratified the 1982 amendments. This is an issue that will have to be addressed at some point. The time to address it is when we can be fairly sure we will succeed.

• A necessary precondition is a federal government francophone Quebecers see themselves in, working on priorities they support.

• In the 1998 reference case, the Supreme Court wrote the rulebook on any future referendum, should there be one, which hopefully there won’t be. Both Mr. Bouchard and Mr. Chretien welcomed this ruling at the time.

• Issues about whether a future question is sufficiently “clear”, should these issues ever end up in dispute, would presumably ultimately end up in front of the Court.

• Mr. Layton is not calling for repeal of the Clarity Act.

• Fewer BQ MPs in Parliament is good for Canada (including Quebec). Working to re-involve Francophone Quebecers in the governance of Canada is the kind of work Canadians hope an aspirant for PM will do. Acknowledging this issue as we are doing is respectful of the views of Francophone Quebecers, and is good nation-building.

• Michael Ignatieff said essentially the same thing in 2006.

• It’s not surprising that in the last week of a campaign our opponents are mis-stating our views on these issues.

• With regard to Guy Giorno’s tweets [the Conservative national campaign director spent part of Tuesday morning asserting on Twitter that Layton wants to make re-opening the Constitution a "priority" - pw]: Mr. Giorno had little to contribute to federal politics other than tactics when he was in the PMO, and this hasn’t changed during this election.

]]>http://www.macleans.ca/politics/ottawa/the-ndp-quebec-and-the-constitution/feed/118‘There’s so much cuckoo around this’http://www.macleans.ca/politics/ottawa/theres-so-much-cuckoo-around-this/
http://www.macleans.ca/politics/ottawa/theres-so-much-cuckoo-around-this/#commentsWed, 13 Apr 2011 13:40:17 +0000Aaron Wherryhttp://www2.macleans.ca/?p=183685The Canadian Press checks Mr. Harper’s understanding of the constitution.
A government must have the confidence of the House of Commons in order to remain legitimate. But if Harper’s Conservatives …

The Canadian Press checks Mr. Harper’s understanding of the constitution.

A government must have the confidence of the House of Commons in order to remain legitimate. But if Harper’s Conservatives have the most seats on May 3, they still need the support of the majority of the House of Commons in order to form government.If Harper loses that confidence, there are two choices, explains Russell. He can ask the Governor General to hold another election. Or the Governor General can look for another option among the other parties.

]]>http://www.macleans.ca/politics/ottawa/theres-so-much-cuckoo-around-this/feed/125A guide to democracyhttp://www.macleans.ca/politics/ottawa/a-guide-to-democracy/
http://www.macleans.ca/politics/ottawa/a-guide-to-democracy/#commentsTue, 12 Apr 2011 16:56:51 +0000Aaron Wherryhttp://www2.macleans.ca/?p=183520The Public Policy Forum has released a summary of a roundtable conducted in March to discuss the loosely agreed upon rules by which we govern ourselves. This follows a workshop…

The Public Policy Forum has released a summary of a roundtable conducted in March to discuss the loosely agreed upon rules by which we govern ourselves. This follows a workshop organized by constitutional scholar Peter Russell in February.

The contributors to each are esteemed and varied. And the overarching objective would seem to be to codify much of what is presently unwritten or poorly understanding: essentially to create something like New Zealand’s Cabinet Manual, an idea Mark Jarvis considered in his essay for our continuing series on the House.

]]>http://www.macleans.ca/politics/ottawa/a-guide-to-democracy/feed/25Stephen Harper and constitutional conventionhttp://www.macleans.ca/politics/ottawa/stephen-harper-and-constitutional-convention/
http://www.macleans.ca/politics/ottawa/stephen-harper-and-constitutional-convention/#commentsTue, 29 Mar 2011 13:48:33 +0000Aaron Wherryhttp://www2.macleans.ca/?p=179991Tom Flanagan, a former advisor to Mr. Harper, is asked for his opinion on the 2004 gambit.
Asked if Mr. Harper might have had a different motivation for sending the …

Tom Flanagan, a former advisor to Mr. Harper, is asked for his opinion on the 2004 gambit.

Asked if Mr. Harper might have had a different motivation for sending the letter to Ms. Clarkson — one other than ensuring that she explored the option of Conservative-led minority if Martin’s government fell — Mr. Flanagan replied: “I can’t see what other point there would have been in writing the letter except to remind everybody that it was possible to change the government in that set of circumstances without an election.”

Meanwhile, John Geddes talks to Don Desserud, who finds Mr. Harper’s understanding of convention to be “odd.”

]]>http://www.macleans.ca/politics/ottawa/stephen-harper-and-constitutional-convention/feed/62The rules of our democracyhttp://www.macleans.ca/politics/ottawa/the-rules-of-our-democracy/
http://www.macleans.ca/politics/ottawa/the-rules-of-our-democracy/#commentsSat, 26 Mar 2011 13:07:51 +0000Aaron Wherryhttp://www2.macleans.ca/?p=179629The Prime Minister will momentarily arrive at Rideau Hall to ask that Parliament be dissolved. Meanwhile this morning, Michael Ignatieff has released a statement on how he would handle a…

The Prime Minister will momentarily arrive at Rideau Hall to ask that Parliament be dissolved. Meanwhile this morning, Michael Ignatieff has released a statement on how he would handle a minority government.

This election is not just an exercise in democracy, it’s about democracy. So as we begin the campaign, let’s be clear about the rules.

Whoever leads the party that wins the most seats on election day should be called on to form the government.

If that is the Liberal Party, then I will be required to rapidly seek the confidence of the newly-elected Parliament. If our government cannot win the support of the House, then Mr. Harper will be called on to form a government and face the same challenge. That is our Constitution. It is the law of the land.

If, as Leader of the Liberal Party, I am given the privilege of forming the government, these are the rules that will guide me:

We will face Parliament with exactly the same team, platform and agenda that we bring to Canadians during this election. What Canadians see in this campaign is what Canadians will get if we are asked to form government.

We will work with ALL parties to make Parliament work, and deliver sound policies – even the Conservative Party in opposition.

We will not enter a coalition with other federalist parties. In our system, coalitions are a legitimate constitutional option. However, I believe that issue-by-issue collaboration with other parties is the best way for minority Parliaments to function.

We categorically rule out a coalition or formal arrangement with the Bloc Quebecois.

If I am facing a minority Parliament, I will work like Liberal Prime Ministers Lester Pearson, Pierre Trudeau and Paul Martin did: to provide progressive government to our country, by building support issue-by-issue, and by tapping into the goodwill, generosity and common sense of Canadians across the political spectrum. These are the governments that gave Canada the Canadian Flag, Medicare, the Canada Pension Plan, the Kelowna Accord and a National Daycare Plan. With the right kind of leadership another minority Parliament could strive for such heights.

That is my position. Now I have a few questions for Mr. Harper:

Does he agree with how I have described the workings of our democratic system?

Why does he insist on fabricating lies about an impending coalition, something he knows is false?

Will he tell Canadians the truth about his secret hotel room meetings in 2004 with the Bloc Quebecois which resulted in a signed letter of agreement to the Governor General, proposing a Conservative-NDP-Bloc coalition?

Will he finally acknowledge the unprecedented finding of contempt against his government yesterday in the House of Commons?

Supporters of big government have been in power for fifty years. They have brought us to a constitutional and economic dead end. Every day they endanger our prosperity and freedom a little more. It is high time for supporters of freedom to get together and propose a new realistic vision of Quebec’s future.

Let’s state it loudly and forcefully: we need a smaller, less interventionist and less centralized government in Ottawa; but also a smaller, less interventionist and less controlling government in Quebec City. A new chapter in Quebec’s history is being written beginning today. And together, through the strength of our convictions, we are the ones who shall be its main characters!

As to the question of federal spending power, there is plenty to be read. For the sake of argument, a paper written for the Library of Parliament in 1991 concludes as follows.

By funding national programs, even those within provincial jurisdiction, the federal government has some ability to equalize national standards. With EPF programs, even although there is no federal control over actual expenditures, the amount transferred is on a per capita basis. If, however, the federal government removed its funding and turned over tax room or tax points, the result could easily be inequitable from one province to another. Poorer provinces would receive less per capita than richer provinces, though they would be applying the same percentage increase in provincial taxation. If actual funds were transferred on a per capita basis, the results would be fairer but national standards might still suffer.

Overall, it seems that little has changed since La Forest wrote his landmark text; the issue remains one of standards, funding and co-ordinating mechanisms, rather than of constitutional change:

What the foregoing reflects is that in Canadian federalism, the real battleground in the constitutional distribution of fiscal powers is not the taxing power. … Rather, it is in connection with the federal spending power that the most incisive thinking must be directed to determine how the legitimate claims of the federal government (regarding, for example, the control of the economy, mobility of Canadians, equalization and the alleviation of disparities) can be accommodated to the equally legitimate claims of the provinces in seeing to the maintenance of the character of provincial society. But whatever changes may be made at the constitutional level, these will not displace the need for ongoing practical arrangements to meet the evolving needs of society.

]]>http://www.macleans.ca/politics/ottawa/would-you-like-some-freedom-fries-with-that/feed/0Something we have lately taken to taking seriouslyhttp://www.macleans.ca/politics/ottawa/something-we-have-lately-taken-to-taking-seriously/
http://www.macleans.ca/politics/ottawa/something-we-have-lately-taken-to-taking-seriously/#commentsMon, 17 May 2010 20:26:33 +0000Aaron Wherryhttp://www2.macleans.ca/?p=127018The Standing Committee on Procedure and House Affairs is presently concerned with a study of “issues related to prorogation” and, as part of those hearings, called Brian Topp, coalition biographer…

The Standing Committee on Procedure and House Affairs is presently concerned with a study of “issues related to prorogation” and, as part of those hearings, called Brian Topp, coalition biographer and former NDP campaign director, to testify. His opening statement, reprinted below, is almost certainly the most interesting treatise on Parliamentary democracy you’ll read this afternoon.

My name is Brian Topp. I’m very grateful to you for having me here today. And I would like to congratulate you for your discussions to date. I’ve read the available committee transcripts and have learned a great deal from them.

I’ll begin by introducing myself.

During most of the 1990s, I worked in the Government of Saskatchewan.

One of my duties, for five years or so, was to oversee our government’s House Business Office — the support arm to our government House leader. This modest credential gives me some small, well-disguised sympathy for the government members sitting in the minority on this committee. You don’t always have an easy job, I suspect.

I’ve been active in federal politics with the New Democratic Party of Canada during the past three elections. But I should add that what follows are strictly my own views, and in no way represent those of our party, our leader or our caucus.

I would like to speak about two topics: the substance of the matter; and then the issue of implementation.

So, about confidence votes and prorogation.

And then about the issue of what should be done to address these issues. Should the standing orders be amended? Should a new Parliament Act be adopted? Or should the constitution be amended?

***

In my view the power to declare or withdraw confidence is the fundamental power of the House of Commons.

There are other critically important powers, like the right to originate money bills.

But the right to assign and withdraw confidence in the Ministry is the crux of the matter — the central act of legitimacy and political power in our political system between elections.

This being so, subordinate or unelected players must not interfere in the exercise of this power. I refer here to the Cabinet, the Senate, and to the Governor-General as well as to the Courts.

To do so is to attack responsible government in Canada at its root.

It is therefore my view that a Ministry should never again, and must never again, seek to interfere in the sitting of the House of Commons when a confidence vote is properly before it.

And in my view the Governor-General must never again accept advice that would have that result.

I understand that a number of relatively complex proposals have been made by Parliamentarians on this subject.

I urge you to clarity and simplicity.

I suggest you find a way to say that when a confidence vote is properly before the House, the House cannot be prorogued or otherwise interfered with.

In any circumstances. For any reason. By anyone. Until that confidence vote has been dealt with.

***

But what is a “confidence vote”, were this to be adopted?

At the moment, that may be far from clear.

For example, it has generally been understood that if the government is defeated on a money bill, it has lost confidence. But both Prime Minister Pearson and Prime Minister Martin arguably suffered defeats in the House that resemble this, and remained in office due to clever manoeuvring.

It is also, unfortunately, longstanding practice in the Canadian Parliament for the government of the day to point to whatever it wants to in its legislation and to declare that matter to be a “confidence vote” — a form of political blackmail that neatly reverses the purpose of such votes, and turns them from an exercise in accountability into an instrument for the reinforcement of executive power.

So a definition seems called for.

I suggest the following:

A confidence vote is a motion — a privileged and important motion — proposed by a Parliamentarian to immediately end the mandate of the sitting government, and to then trigger one of two outcomes.

 Either a Loyal Address to the Governor-General respectfully requesting that she authorize an election.

 Or a Loyal Address to the Governor-General respectfully requesting she immediate replace the Ministry with a specified alternative Ministry.

Governments, of course, would always remain free to resign or to threaten to do so, over any issue they like.

So, in other words, I suggest you define and enshrine “confidence motions” in two forms: as a decision by the House of Commons to request an election, or as a decision to immediately replace the government with a new one.

The election trigger seems straightforward.

For an example of how my suggestion for immediately replacing the government could work, I refer you to article 67 of the German constitution.

This mechanism — a “constructive vote of non-confidence” — worked smoothly in October 1982 to replace a Social Democratic government led by Helmut Schmidt with a Conservative one led by Helmut Kohl.

Reassurance, I hope members of the government caucus will agree, that these ideas aren’t just about getting rid of you.

Spain has a similar provision in article 113(1) and article 114(2) of its constitution.

And Hungary has a similar provision in article 39A(1) of its constitution.

***

Which gets us, briefly, to the issue of implementation.

Standing orders, a bill, or a constitutional amendment?

I see that the committee has spent some time pondering the issue of enforceability, which is central to the question of what form to use.

I suggest you not worry about that overmuch.

We are confronted here with a requirement similar to the one the House addressed when it adopted Mr. Stephane Dion’s Clarity Act.

The House needs to clearly state its view of how it expects subordinate and unelected players to behave in a specific set of circumstances related to a power — the power to give and withdraw confidence — that it holds exclusively under our system of government.

If you legislate clearly and without complexity, escape hatches or weasel words, I think you are then entitled to expect the Prime Minister and the Governor-General to govern themselves accordingly.

In other words, I agree with Thomas Hall that if the rules are clear, the Governor-General at least can be expected to abide by them.

If this proved not to be case, fundamental issues about the office of the Governor-General and the future of the Crown in Canada might then arise. I think you can expect the Governor-General to be mindful of this.

That being so, my advice is to both immediately amend the standing orders, AND to introduce a constitutional amendment under section 44.

I suggest immediately amending the standing orders, because the present Ministry probably cannot prevent you from doing so.

I suggest introducing appropriate constitutional amendments under section 44, with the goal of making these rules less vulnerable to a future act of executive power by a majority government or a majority combination.

I doubt that such a constitutional amendment will be adopted by the present Parliament, given the current majority in the Senate. But I suggest that that it be introduced, and that all parties of like mind commit to reintroducing it each and every session until it is adopted, in its own good time.

Such a amendment would be absolutely faithful to the principles and traditions of both the Progressive Conservative party and of the Reform Party.

And so, when at some point the circumstances before us today come to an end, I suspect the odds will improve for an appropriate amendment to find all-party support.

Until then, the majority in the House can, should, and must speak clearly and authoritatively — something you can do through the standing orders.

That is a moment I urge this committee not to miss.

Speak for Parliament.

Speak for accountable, responsible government.

Speak for our democracy — so that, slowly, step-by-step, one regrettable act of improvised ministerial survival at a time, we don’t lose it.

]]>http://www.macleans.ca/politics/ottawa/something-we-have-lately-taken-to-taking-seriously/feed/13Republicanism: More like a root canal than a crownhttp://www.macleans.ca/general/republicanism-more-like-a-root-canal-than-a-crown/
http://www.macleans.ca/general/republicanism-more-like-a-root-canal-than-a-crown/#commentsThu, 05 Nov 2009 15:05:09 +0000Andrew Potterhttp://www2.macleans.ca/?p=90717Earlier this week I interviewed Michael Behiels, a political historian at the University of Ottawa. We had a nice long chat, about Prince Charles and his mum, the monarchy, those…

Earlier this week I interviewed Michael Behiels, a political historian at the University of Ottawa. We had a nice long chat, about Prince Charles and his mum, the monarchy, those annoying Australians, and Stephen Harper. Here’s a partial transcript of the interview — this is my favourite part:

I think Harper’s education in Calgary warped his understanding of the parliamentary system in Canada. He was taken down the wrong path by Tom Flanagan and others, who think ours is an easy system to change. I thought Harper had a better understanding of the constitution than that, since his views on the Meech Lake and Charlotteown accords, and on the Supreme Court reference on Quebec secession, were quite astute.

]]>http://www.macleans.ca/general/republicanism-more-like-a-root-canal-than-a-crown/feed/31Expert insight on the Governor General’s dilemmahttp://www.macleans.ca/politics/ottawa/expert-insight-on-the-governor-generals-dilemma/
http://www.macleans.ca/politics/ottawa/expert-insight-on-the-governor-generals-dilemma/#commentsThu, 04 Dec 2008 15:32:33 +0000John Geddeshttp://macleans.wordpress.com/?p=22099University of Toronto law professor Ed Morgan is an expert on the Constitution and the traditions that underpin Parliamentary government. As Prime Minister Stephen Harper spoke with Governor General Michaelle…

University of Toronto law professor Ed Morgan is an expert on the Constitution and the traditions that underpin Parliamentary government. As Prime Minister Stephen Harper spoke with Governor General Michaelle Jean at Rideau Hall, Morgan answered our questions about the decision she must soon make. An edited version of that conversation:

Q. What rules will guide the Governor General this morning?

A. All we have on these matters is a phrase that says our Constitution is similar to the constitution of the United Kingdom, and we know they have an unwritten constitution. So we’re into the area of unwritten constitutional conventions. The so-called reserve powers of the Crown are not unlimited but they are just unwritten.
Q. So she’ll have to look back to how her predecessors acted at moments like this?

A. You have to look at the conventional uses of these powers. Typically the Governor General has formal powers, but in all of Canada’s modern history, Governors General have acted on the prime minister’s advice. In these rare times of constitutional crisis, when they have to exercise independent decision-making, that’s when the conventions come into effect.

Q. Is there any precedent for this crisis?

A. The one precedent is the King-Byng affair of the mid-1920s. There are lots of parallels between that affair and today. A minority Liberal government was looking at a non-confidence vote and asked the Governor General, not to prorogue in that case, but to call a new election. The Conservatives with the support of the Progressives said they could form a government, not a coalition but coalition-like. Governor General Byng turned to them and said, ‘Give it a try.’ They tried and failed, and were rebuked by the public in the election that followed, returning Mackenzie King with a majority.

Q. What if either Harper or his opponents don’t like whatever decision Michaelle Jean makes? Can they ask a court to overrule her?

A. These conventions are not judicially enforceable. The courts won’t strike down her decision one way or the other.

Q. A lot of Canadians just don’t get this. They think whoever wins an election gets to govern, period, until there’s another election.

A. That’s the core of the problem. Formally speaking, we elect a Parliament not a prime minister. That’s what Stéphane Dion is trying to impress upon people: we elect a Parliament and we need to let Parliament find its stable governance. But people commonly don’t think that way. We have debates among the party leaders just like the Americans have debates between the candidates for president. People don’t think they are electing a parliament; they think they are electing a prime minister to lead the government.

Q. So our parliamentary traditions clash with public perceptions.

A. Our formal parliamentary system has bumped up against what goes on in popular discourse. People think we elected Harper, but we elected a whole bunch of MPs.

Q. Does the Governor General have any real choice here? Rejecting Harper’s plea for suspending parliament would amount to dismissing him.

A. The very fact that you need authorization from the Governor General to prorogue parliament means that there is some leeway there for the Governor General to say Yes or No.

Q. So he has to persuade her.

A. It’s incumbent on the PM to present a good justification. And here it looks as if there is one. The usual justification for proroguing is that MPs have to consult. There is certainly a good case to be made that MPs should go out and consult with their constituents.

Q. So what would you say she should do?

A. She’s got to take the least interventionist path, which would be to accede to his request.

The idea that the Governor General would be within her rights to refuse Harper’s request for dissolution apparently has other adherents besides crankish magazine columnists. Indeed, constitutional scholar Errol Mendes, professor of law at the University of Ottawa and editor of the National Journal of Constitutional Law, argues Harper’s demand for a snap election may well be illegal:

Many of the powers of the prime minister and the Governor General are governed not by the written Constitution, but by constitutional conventions, including who has the right to dissolve Parliament and call for elections. Constitutional convention gives the prime minister only the right to advise the Governor General to call for dissolution of Parliament and thereby trigger an election. The Governor General has an uncontested residual power to deny a prime minister’s request for dissolution.

Constitutional conventions can be both entrenched in and overridden by statute law. That is precisely what the Conservatives did when they decided to constrain the conventional power of the prime minister to seek dissolution whenever he smelled political advantage to do so.

However, the fixed election law does not constrain the residual power of the Governor General…

demonstrates that the use of the conventional residual power by the Governor General contrary to the advice of the prime minister has the potential to cause political controversy and create trouble for the Crown in Canada… This precedent, while not a constitutional convention, would present a serious political hurdle for a Governor General to refuse to grant the request of a prime minister for dissolution, no matter how contrived.

Still,

Hiding under the political constraints of the Governor General’s residual power is nevertheless a violation of a statute. Some aggrieved citizen may even consider seeking court action to stop this legally dubious move.

]]>http://www.macleans.ca/general/an-illegal-election/feed/92This is why we can’t have nice things. Or constitutional debate.http://www.macleans.ca/general/this-is-why-we-cant-have-nice-things-or-constitutional-debate/
http://www.macleans.ca/general/this-is-why-we-cant-have-nice-things-or-constitutional-debate/#commentsThu, 01 May 2008 01:12:00 +0000kadyomalleyhttp://macleans.wordpress.com/2008/04/30/this-is-why-we-cant-have-nice-things-or-constitutional-debate/Flipping y’all back to Colleague Wells, who put his Google-fu up against Peter Van Loan’s communications director, and – well, you can decide for yourselves who came out ahead.…

Oh, dear. I fear my fellow Maudit Anglais Phil Gohier doth protest too much. Not sure what’s in the air in Toronto these days – Frustration? Spite? The stench of failure? – but whatever it is, Phil has been inhaling a little too hard. (Through the nose, Phil.) I wept yesterday when reading his treacherous post about TQS, Quebec’s self-professed “black sheep” network, the recent hardships of which Phil tut-tutted: “Am I the only one who doesn’t really understand the collective hand-wringing over the plight of TQS? Exactly how did the future of a third-rate TV network whose only success was in the realms of late-night softcore porn and phony ‘debates’ between insufferable blowhards become a constitutional issue?”

First off, Bleu Nuit is a long-running cultural icon that for decades has helped countless Quebec teens through the night. It also taught the world at large that, yes, Quebecers are for the most part horny and forever tortured. You might as well say Poutine is bad because its fattening and clogs the arteries, or that foie gras is evil because, well, think of the poor ducks.

Until recently, TQS also was home to Jean-Luc Mongrain, one of the more interesting news anchors this country has ever seen. If you understand French, check this clip. It’s of Jean-Guy back in the day, excoriating a listener who said she was unemployed because of all the immigrants. Mongrain works himself into a froth over the insular nature of Quebec society, and how quickly some Quebecers blame others for their problems. He decries the province’s “culture of mediocrity” and its all-too-frequent tendency towards xenophobia and our fear of success – nearly 15 years before Quebec’s crise de coeur over reasonable accommodations. And he is more enlightening in eight minutes than two months of Bouchard-Taylor hearings on the subject. Mongrain is like that brilliant, drunk uncle you see on holidays: yes he’s a blowhard, and he’ll probably end up offending someone. But damned if he isn’t right most of the time.

Finally, Phil, everything in Quebec eventually becomes a constitutional issue. It’s part of the charm.